BEFORE THE WORKERS' COMPENSATION BOARD OF
THE STATE OF OREGON
HEARINGS DIVISION
Oregon Occupational Safety &
Health Division ) Docket No: SH-95020
Plaintiff, ) Citation No. M6281-048-94
)
JOHNSON TRENCHING, )
)
Defendant. ) OPINION AND ORDER
Pursuant to notice, a hearing was held in the above matter on
December 7, 1995, in Salem, Oregon, before Administrative Law
Judge Donna Garaventa. The plaintiff, Oregon Occupational
Safety & Health Division (hereinafter OR-OSHA), was represented
by Rochelle A. Nedeau. The defendant, Johnson Trenching, did
not appear either personally or through a representative. The
proceedings were recorded by Marlene Cromwell of Business
Support Services. The record was closed on December 7, 1995.
No affected employees elected to appear as parties pursuant to
OAR 438-85-411.
This is a contested case under the Oregon Safe Employment Act,
ORS 654.001 to ORS 654.991.
EXHIBITS
Exhibits 1 through 9 were received into evidence.
ISSUES
Whether or not Defendant violated OAR 327-03-420(1).
FINDINGS OF FACT
On June 8, 1994, Michael Mitchell, a senior safety compliance
officer for OR-OSHA, performed a safety inspection of an
excavation worksite at the 500 block of Ferry St. SE, Salem,
Oregon. The weather was bright and sunny. Mitchell approached
the site, identified himself, and conducted an opening
conference with the lead worker. The excavation was being
performed on the sidewalk adjacent to the street. Approximately
50 feet in advance of the excavation site there was a controlled
intersection. A backhoe and a truck were in the parking lane of
the street. They were not obstructing traffic. Cones were
positioned around the truck. There were no warning signs placed
in the street to provide advance warning to motorists that work
was being done.
The owner of the company, Archie Johnson, arrived on the site
at the beginning of the closing conference and was visibly upset
by the presence of the compliance officer. Mr. Mitchell advised
Mr. Johnson that the only violation was the failure to have
warning signs in the roadway, and Johnson assured Mitchell that
he would have them in place the following day.
After the closing conference was completed, Mitchell left the
site.
In determining the classification of the violation, Mitchell
noted that injuries resulting from an accident caused by the
violation would probably be minor, or less than serious, because
the operation was taking place on the sidewalk rather than the
street and the workers were protected by the positioning of the
vehicles in the street adjacent to the curb near the work being
done. Probability of an injury occurring was rated as low
because of the particular circumstances in this case. No
penalty was assessed for the violation.
CONCLUSIONS AND OPINION
OR-OSHA has the burden of establishing that the employer
violated OAR 438-03-420(1) at the job site on June 8, 1994. OAR
437-03-420(1) provides:
"Adequate and appropriate traffic controls shall be
provided for all operations on or adjacent to a highway, street,
or railway. The traffic controls shall conform to the American
National Standards Institute (ANSI) D6.1c-1989: Manual on
Uniform Traffic Control Devices for Streets and
Highways."
Section 6B-12 of the U.S. Department of Transportation Federal
Highway Administration Manual on Uniform Traffic Control
Devices for Streets and Highways states,
"Warning signs for construction and maintenance
projects are used to notify drivers of specific hazards which
may be encountered, when those operations are underway. Within
the construction zone there may be a variety of temporary
roadway facilities. Pavement width may be reduced. Open
excavations may be present in or near the roadway, or travel
across an unpaved section may be required. Drivers should be
properly alerted to possible dangers ahead in sufficient time to
adjust their speed for the hazard."
Determination of the issue in this case requires identification
of the specific hazards to traffic caused by the operation and
whether or not "adequate and appropriate" traffic controls were
provided to protect against the hazards.
OR-OSHA identified the hazard as a danger created by vehicles
entering traffic when leaving the excavation site. However, in
his notes, the compliance officer noted that there were "no
obstructions at all to traffic." (Ex. 5-2). Those notes were
confirmed by the videotape made by the compliance officer at the
scene. (Ex. 6). The two vehicles, a truck and a backhoe, were
parked in the parking lane beside the excavation. There was no
showing that the hazard created by any construction vehicles
leaving the site from a parking space would be any greater than
that caused by a regular vehicle entering traffic from a parking
space.
Even if the presence of the vehicles in the parking lane was
considered to have created a hazard, I find that the traffic
controls used by the employer in this situation were adequate
and appropriate. A traffic light controlled traffic one-half
block to the east, which, according to Mitchell, reduced the
risk of vehicles speeding past the excavation site. The signal
also provided breaks in traffic to allow the dump truck to enter
the traffic lanes safely. Finally, cones were positioned around
the construction vehicles parked in the parking lane, providing
a caution warning to motorists that activity was occurring in
the area.
Considering that traffic was not being obstructed by the
excavation, that a traffic signal just prior to the operation
controlled traffic near the site, and that cones were placed
around the vehicle parked in the street, I find that the traffic
controls were adequate and reasonable and that the prior warning
suggested by the compliance officer (signs posted 200 to 250
feet in advance of the site and 200 to 250 feet before that) was
not necessary. I conclude that OR-OSHA has not met its burden
of establishing a violation of OAR 438-03-420(1). Accordingly,
Item 1-1 of the citation will be set aside and the citation
dismissed.
ORDER
NOW, THEREFORE, IT IS HEREBY ORDERED Item 1-1 of Citation No.
M6218-048-94, issued August 10, 1994, which found a violation of
OAR 437-03-420(1) and imposed a penalty of $0.00, is set aside
and the Citation is dismissed.
Notice to all parties: You are entitled to judicial
review of this Order. Proceedings for review are to be
instituted by filing a petition in the Court of Appeals, Supreme
Court Building, Salem, Oregon 97310, within 60 days following
the date this Order is entered and served as shown hereon. The
procedure for such judicial review is prescribed by ORS 183.480
and ORS 183.482.
Entered at Salem, Oregon, December 13, 1995
Workers' Compensation Board
Donna Garaventa, ALJ